Tamil Nadu Engineering Diploma Holders Association v. The Secretary to Government Home (Transport IIA) Department Fort St. George Chennai

O R D E RThe petitioner is an association of Tamil Nadu EngineeringDiploma Holders which consists of Mechanical Engineering andAutomobile Engineering. A notification was issued by the secondrespondent on 23.05.2007 in advertisement No.107 calling for theapplications for the post of Motor Vehicles Inspector, Grade-II,totaling 49. In pursuant to the notification, the second respondenthas issued instructions to the candidates who are eligible to beappointed as Motor Vehicles Inspector, Grade-II. The vacanciesmentioned in the said notification are notified subject to the rulesof reservation.2.The instructions given by the second respondent inParagraph 22(b) clearly stipulate the procedure for selection.Accordingly, there shall be a main written examination and theselected candidates will under go an oral test. By considering themarks obtained in both written examination as well as the oral test,selection would be made. If the number of vacancies notified/reservedto be filled up for any one or more of the reservation groups such asScheduled Castes, Scheduled Tribes etc., is 5 and above, the numberof candidates to be admitted to the oral test shall be two times thenumber of vacancies for which recruitment has to be made. Similarly,if the number of vacancies in any one or more of the remainingreservation groups are 4 and below, then the number of candidates tobe admitted to the oral test shall be three times the number ofvacancies for which the recruitment has to be made. Therefore, as perthe said instructions when in a reserved category, the vacancies are5 and more, then two times more than the vacancies would be calledfor from those who have written the main examination and where thevacancies are 4 and less in the reserved categories, then the samewould be three times more. Accordingly, those candidates alone wouldbe called for the oral interview. For example, if there is one postavailable in a reserved category, then three persons from the saidcategory who have written the examination and who have scored thefirst three higher marks would be called. Similarly. if there are 5vacancies in a reserved category, 10 candidates would be called.Therefore, the ratio of 1:2 when vacancies are more and 1:3 whenvacancies are less in a reserved category has been formulated.3.In this connection, instruction 22(b) is extractedhereunder:"22(b). Posts for which selection is made on thebasis of Written Examination and Oral Test.Where the selection is made on the basis ofboth, Main Written Examination/WrittenExamination and Oral Test, the Main Written https://hcservices.ecourts.gov.in/hcservices/ Examination/Written Examination will precede theOral Test. If the number of vacanciesnotified/reserved to be filled up for any one ormore of the reservation groups(viz. ScheduledCastes, Scheduled Tribes, Most BackwardClasses/Denotified Communities, Backward Classesor General Turn) is five and above, the number ofcandidates to be admitted to the Oral Test shallbe two times the number of vacancies for whichrecruitment has to be made against thosereservation groups based on the marks obtained bythe candidates at the Main Written Examination orWritten Examination, as the case may be.Similarly, if the number of vacancies in any oneor more of the remaining reservation groups forthe same recruitment is four and below, thenumber of candidates to be admitted to the OralTest from those particular reservation groups(s)shall be three times the number of vacancies forwhich recruitment has to be made against thosereservation group(s). In respect of the posts,the total cadre strength of which is one only andfor which the rule of reservation of appointmentsdoes not apply, the number of candidates to beadmitted to the Oral Test on the basis of themarks obtained at the Written Examination will bethree. The final selection will be made on thebasis of the total marks obtained by thecandidates at the Main Written Examination orWritten Examination, as the case may be, and OralTest taken together subject to the rule ofreservation of appointments wherever it applies.Appearance in all the papers at the Main WrittenExamination/Written Examination and for Oral Testis compulsory. The candidates who have notappeared for any of the subjects in the MainWritten Examination/Written Examination will notbe considered for selection even if they securethe minimum qualifying marks for selection.The marks obtained by the candidatesappearing for the Oral Test, both in the WrittenExamination as well as in the Oral Test will beplaced in the Notice Board in the Office of theTamil Nadu Public Service Commission in theevening either on the last day fixed for OralTest or one the succeeding working day. The samewill also be made available on the Internet inthe Commission's Website www.tnpsc.org." https://hcservices.ecourts.gov.in/hcservices/

4.In pursuant to the said examination, the candidates havebeen selected and they have been asked to attend the oral test byfollowing the above said ratio. At that point of time, the writpetition has been filed by the petitioner herein seeking the reliefof writ of mandamus directing the second respondent to follow theratio of 1:3 for the 49 posts notified pursuant to the notificationdated 23.05.2007.5.Shri.K.Rajkumar, learned counsel for the petitionersubmitted that over the years what is followed is only 1:3 ratio forall categories. By restricting the ratio to 1:2 more members of thepetitioner's association have lost their chances. Therefore, themethod adopted by the second respondent is illegal. It is furthersubmitted that for the post of District Educational Officer, thesecond respondent has called for 57 candidates for 19 vacancies inthe ratio of 1:3.6.Shri.K.Rajkumar, learned counsel for the petitionerfurther contended that the Government of Tamil Nadu has issuedG.O.Ms.No.18, Labour and Employment Department (N2) dated 25.02.2008in which, the directions have been issued to fill up the post ofSecondary Grade Teachers which is a ratio of 1:5. Even in theprevious occasions the respondents have followed only 1:3 ratio.Therefore, the second respondent will have to be directed to call forthe interview by fixing the ratio of 1:3 since by following theavailable 1:2 ratio the members of the petitioner are affected. It isfurther submitted that the principle of desuetede will have to beapplied in the present case and accordingly, a procedure which hasbeen followed over the years even contrary to the rule will have tobe continued. The learned counsel further submitted that therespondents cannot follow different yardstick for differentcategories and hence the said action of the second respondent isviolative under Article 14 of the Constitution of India.7.In support of his contention that the procedure ascontemplated by the second respondent in the instructions shall notbe followed in view of the earlier procedure followed over the years,the learned counsel for the petitioner relied upon the judgmentreported in 1995 (3) SCC 434 [MUNICIPAL CORPORATION FOR CITY OF PUNEAND ANOTHER vs. BHARAT FORGE CO. LTD. AND OTHERS] and submitted thatthe principle of desuetede will have to be followed. In support ofhis contention that the action of the second respondent would amountto violation of article 14 of the Constitution of India inasmuch assimilarly placed persons are treated unequally, the learned counselrelied upon the judgments reported in AIR 1971 SC 2369 [UNION OFINDIA vs. MOOL CHAND DASUMAL PARDASANI], AIR 1973 SC 689 [NAGPURIMPROVEMENT TRUST AND ANOTHER vs. VITHAL RAO AND OTHERS], AIR 1993 SC2467 [CENTRAL RAILWAY AUDIT STAFF ASSOCIATION AND OTHERS vs. DIRECTOROF AUDIT, CENTRAL RAILWAY AND OTHERS], AIR 1965 SC 1017 [P.VAJRAVELU https://hcservices.ecourts.gov.in/hcservices/ MUDALIAR, MOST REV.DR.L.MATHIAS vs. THE SPECIAL DEPUTY COLLECTOR FORLAND ACQUISITION, WEST MADRAS AND ANOTHER], (2006) 2 MLJ 572[N.S.BALASUBRAMANIAN AND OTHERS vs. FOOD CORPORATION OF INDIA, NEWDELHI]. Further, in support of his contention that even a policydecision can be challenged in the touchtone of Article 14 of theConstitution of India, the learned counsel relied upon the judgmentsreported in 1999 (3) MLJ 347 [S.PAPPA AND OTHERS vs. GOVERNMENT OFTAMIL NADU AND OTHERS] and (2004) 2 MLJ 314 [V.KRISHNAMURTHY,PROPRIETOR, MEENA ADVERTISERS, CHENNAI vs. AIRPORTS AUTHORITY OFINDIA, NEW DELHI]. Hence, Shri.K.Rajkumar, learned counsel for thepetitioner contended that the writ petition will have to be allowed,based upon the submissions made by him.8.Per contra, Shri.G.Masilamani, learned senior counselappearing for the second respondent submitted that the writ petitionis not maintainable in law and facts. The writ petition cannot bemaintained by an association since the aggrieved persons areindividual members. Moreover, a policy decision of the secondrespondent cannot be assailed without even challenging the same byway of an appropriate prayer. It is further submitted that themembers of the petitioner are estopped from challenging the saidcondition mentioned in the prospectus since the prospectus and theinstructions are having the force of law.9.Shri.G.Masilamani, learned senior counsel for the secondrespondent also contended that inasmuch as the procedure havingformulated by the second respondent by exercising the power underArticle 320(1) of the Constitution of India, the petitioner cannotchallenge the same since the second respondent is well within hisright to formulate the procedure. It is further submitted thatArticle 14 is positive in nature and the same cannot be used tocommit an illegality by the respondents. 10.In support of his contention that the prospectus and theinstructions are having the force of law Shri.G.Masilamani has reliedupon the judgment reported in 2006 (3) CTC 449 [DR.M.VENNILA vs.TAMIL NADU PUBLIC SERVICE COMMISSION] wherein a Division Bench of theHon'ble High Court of Madras has taken such a view.Shri.G.Masilamani, learned senior counsel also relied upon thejudgment reported in AIR 1987 SC 454 [ASHOK KUMAR YADAV AND OTHERSvs. STATE OF HARYANA AND OTHERS] to submit that the ratio of 1:2 and1:3 has been evolved based upon the said judgment alone. He furthersubmitted that the ratio followed for the other posts cannot form thebasis since it depends upon the number of vacancies availablebecause it is always desirable to have less number of personsselected from the main written examination to be interviewed by thesecond respondent in order to have proper assessment of thecandidates. The said decision being one of policy decision the samecannot be questioned. https://hcservices.ecourts.gov.in/hcservices/

11.I have heard Mr.K.Rajkumar, learned counsel for thepetitioner, Mrs.Lita Srinivasan, learned Government Advocate for thefirst respondent and Mr.G.Masilamani, learned senior counsel for thesecond respondent.12.As rightly contended by Shri.G.Masilamani, learnedsenior counsel for the second respondent, the writ petition ismisconceived. The petitioner cannot file a writ of mandamus directingthe respondents to formulate a particular policy. A formulation of apolicy by the respondents is entirely within its own jurisdiction.Hence until and unless, the said policy decision is arbitrary,illegal and irrational the same cannot be challenged. This Hon'bleCourt sitting under Article 226 of the Constitution of India cannottest such a policy decision evolved by the respondents.13.Further, a writ of mandamus being a discretionary reliefcannot be issued at the instance of the petitioner who is anassociation. It is for the individual members to have recourse tolaw. Moreover there is no legal right for the petitioner to seek therelief sought for. Nobody has got a vested right to seek anappointment but there can only be a right to consider the individualperson for an appointment subject to the rules and regulations. Themembers of the petitioner admittedly participated in the main writtenexamination. It is not in dispute that instructions No.22(b)stipulates a specific mode by which selection has to be made. Thepetitioner and his members are aware of the said mode and they cannotpresume that the said method will not be adopted by the respondents.14.The fact that a different procedure is adopted by theGovernment of Tamil Nadu in following the ratio and by therespondents in other cases cannot be a ground to invoke Article 14 ofthe Constitution of India. Article 14 of the Constitution of Indiawould be made applicable only in a case where the persons, groups orassociations are classified into one. In a case where theclassification is based upon intelligible differentia having nexus tothe object sought to be achieved, the said decision made by anauthority cannot be termed as violative of Article 14 of theConstitution of India. Further, the contention of Shri.K.Rajkumar,learned counsel for the petitioner that over the years therespondents have followed 1:3 ratio inspite of the similarinstruction and hence the same procedure has to be followed, alsocannot be countenanced. It is a well settled principle of law thatArticle 14 of the Constitution of India cannot be pressed intoservice in a case where illegality has been committed by an authorityin one case. Moreover, a writ of mandamus cannot be issued to anauthority to act contrary to the rules and procedure established bylaw. Inasmuch as the notification and the instruction are having thesanction of law and the said procedure having been adopted as apolicy by the respondents the same cannot be questioned, more so https://hcservices.ecourts.gov.in/hcservices/ after the participation by the members of the petitioner. Thepetitioner also does not have any case on the ground of legitimateexpectation based on a fact which is said to have been done contraryto the procedure. Further the relief based on legitimate expectationwould not arise against the public interest and public policy. 15.Shri.K.Rajkumar, learned counsel for the petitioner hasrelied upon the judgment reported in 1995 (3) SCC 434 [MUNICIPALCORPORATION FOR CITY OF PUNE AND ANOTHER vs. BHARAT FORGE CO. LTD.AND OTHERS]. In the opinion of this Court the said judgment is notapplicable to the facts and circumstances of this case. In the saidcase, in pursuant to the notification dated 12.03.1881 octroi wascollected sufficiently for a long period. Thereafter, anothernotification was issued on 17.06.1918 which has not been implemented.Thereafter, new octroi rules came into force in 1963. Hence, takinginto consideration of the above said facts, the Hon'ble Supreme Courthas held that by applying the doctrine of desuetude there cannot beany demand based upon the notification dated 17.06.1918. In order toapply the principle of desuetude there must be a contrary practicewhich must be of some duration and general application. Under thesaid principle an act of the parliament may lose its force withoutexpress repeal. The said judgment cannot be applied to the presentcase since a reading of the counter affidavit would show that thepolicy of Ratio evolved in the present case has also been applied bythe second respondent to other cases as well. 16.In fact, in support of the Group-I Service Recruitment,however Government recruited candidates have been admitted to theoral test in the ratio of 1:2 only. Therefore, this Court is of theopinion that the learned counsel for the petitioner has relied uponthe judgment which is not applicable to the present case on hand. Theother judgment relied upon by the learned counsel for the petitioneralso do not support the case of the petitioner. In the judgmentreported in AIR 1971 SC 2369 [UNION OF INDIA vs. MOOL CHAND DASUMALPARDASANI] the Hon'ble Supreme Court was dealing with the situationwhere the amendment of rule increasing the age of superannuation from55 to 60 years was not followed in the case of the petitioner thereinalone as against the other identically placed persons. Therefore, inview of the fact that the petitioner therein and the other personswho have enjoyed the benefit from the same group, the Hon'ble SupremeCourt was pleased to hold that the discrimination made against thepetitioner therein is in violative of Article 14 of the Constitutionof India. In the judgment reported in AIR 1973 SC 689 [NAGPURIMPROVEMENT TRUST AND ANOTHER vs. VITHAL RAO AND OTHERS]. The Hon'bleSupreme Court was observed the said judgment in paragraph 23 asfollows:"23.It is now well-settled that the Statecan make a reasonable classification for thepurpose of legislation. It is equally well- https://hcservices.ecourts.gov.in/hcservices/ settled that the classification in order to bereasonable must satisfy two tests (i) theclassification must be founded on intelligibledifferentia and (ii) the differentia must have arational relation with the object sought to beachieved by the legislation in question. In thisconnection it must be borne in mind that theobject itself should be lawful. The objectitself cannot be discriminatory, for otherwise,for instance, if the object is to discriminateagainst one section of the minority thediscrimination cannot be justified on the groundthat there is a reasonable classification becauseit has rational relation to the object sought tobe achieved."Hence, a reading of the said judgment would show that thesaid judgment is infact in support of the respondents rather than thepetitioner. 17.In the judgment reported in AIR 1993 SC 2467 [CENTRALRAILWAY AUDIT STAFF ASSOCIATION AND OTHERS vs. DIRECTOR OF AUDIT,CENTRAL RAILWAY AND OTHERS] the Hon'ble Supreme Court has held thatwhen the posts are different, persons working in one post cannotclaim the same privileges as given to the other post and the same isnot violative of Article 14 of the Constitution of India. Applyingthe said principle of the Apex Court, this Hon'ble Court finds thatselection process evolved by the second respondent in the presentcase is being different than the one formulated for the selection ofthe District Educational Officer is not violative of Article 14 ofthe Constitution of India.18.Similarly, the Apex Court in judgment reported in AIR1965 SC 1017 [P.VAJRAVELU MUDALIAR, MOST REV.DR.L.MATHIAS vs. THESPECIAL DEPUTY COLLECTOR FOR LAND ACQUISITION, WEST MADRAS ANDANOTHER] has held that the classification sought to be made betweenpersons whose lands are acquired for other public purposes has norationale to the object sought to be achieved. There also the Hon'bleSupreme Court was pleased to hold that Article 14 is violative whensimilarly placed persons are treated differently. The same has beenreiterated by the judgment reported in (2006) 2 MLJ 572[N.S.BALASUBRAMANIAN AND OTHERS vs. FOOD CORPORATION OF INDIA, NEWDELHI] as well. In the judgment reported in 1999 (3) MLJ 347 [S.PAPPAAND OTHERS vs. GOVERNMENT OF TAMIL NADU AND OTHERS] the Hon'ble HighCourt has held that even a policy decision can be challenged on theground of violation of Article 14 of the Constitution of India. ThisCourt is of the opinion that there is no dispute about the saidproportion of law but the question to be decided is as to whether theclassification is proper or not. In the judgment reported in (2004) 2MLJ 314 [V.KRISHNAMURTHY, PROPRIETOR, MEENA ADVERTISERS, CHENNAI vs. https://hcservices.ecourts.gov.in/hcservices/ AIRPORTS AUTHORITY OF INDIA, NEW DELHI] the learned single Judge ofthis Hon'ble Court has held that the Court can interfere when thedecision making process is vitiated by malafides, unreasonableness orarbitrariness and overwhelming public interest. As held earlierthere is no unreasonableness or arbitrariness and overwhelming publicinterest requiring interference by this Hon'ble Court in the presentcase. Further, the petitioner has not even made a plea of malafidesand therefore, this Hon'ble Court cannot go into the same, more sowhen a strong proof is required to be proved by a person raisingmalafides.19.Shri.G.Masilamani, learned senior counsel for the secondrespondent submitted that a policy decision has been evolved by therespondents based upon the judgment reported in AIR 1987 SC 454[ASHOK KUMAR YADAV AND OTHERS vs. STATE OF HARYANA AND OTHERS]wherein the Hon'ble Supreme Court has depricated the practice offollowing the ratio beyond 1:2 or 1:3. Therefore, in accordance withthe said judgment a policy has been evolved and the second respondentbeing a statutory body is free to evolve its own policy. This Courtalso feels that the said submission merits acceptance. Further, inthe judgment relied upon by the learned senior counsel for therespondents reported in 2006 (3) CTC 449 [DR.M.VENNILA vs. TAMIL NADUPUBLIC SERVICE COMMISSION] the Hon'ble High Court also makes it clearthat after participating in the process of selection, the concernedaffected persons cannot challenge the terms of the prospectus whichcontained the instructions. The observation made by the DivisionBench in paragraph 24 is extracted herein.""24. We have already referred to variousterms and conditions mentioned in the applicationform prescribed by Punjab Technical University,Jalandhar, which are similar to Clause 17 ofInstruction to Candidates, etc., and InformationBrochure issued by the Tamil Nadu Public ServiceCommission. It has been repeatedly affirmed byalmost all the Full Benches of the Punjab andHaryana High Court that the Information Brochurehas the force of law and has to be strictlycomplied with. We are in respectful agreementwith the said view."20.This Court is of the opinion that the said judgment issquarely applicable to the present case on hand and hence, thepetitioner cannot seek the relief sought for.21.The writ petition has been filed by the petitioner whois an association. The writ petitioner by itself is not the affectedor the aggrieved party. Therefore, this Court is of the opinion thatthe association not being an aggrieved party cannot file a writpetition on behalf of its members. It is for the individual person https://hcservices.ecourts.gov.in/hcservices/ concerned to file a writ petition ventilating his grievances. In thisconnection, it is useful to refer the judgment of the Hon'bleDivision Bench reported in (2005) 3 MLJ 252 [TAMILAGA ASIRIYARKOOTTANI vs. THE GOVERNMENT OF TAMIL NADU] the Hon'ble Division Benchhas observed as follows:"5.A Division Bench of this Court inFormation of Indian Network MarketingAssociation, Chennai vs. M/s.Apple FMCG MarketingPrivate Limited, Chennai and others, (Writ AppealNo.688 of 2005 dated 7.4.2005) reported in (2005)2 M.L.J. 526, has held that such writ appeals areliable to be dismissed on the ground of lack oflocus standi (vide paras.6 to 13). In para.6 ofthe said judgment it was observed:-"It is well settled that ordinarily a writpetition or writ appeal can only be filed bysomeone who is personally aggrieved."6.In Indian Sugar Mills Association vs.Secretary to Government, A.I.R. 1951 All. 1 aFull Bench of the Allahabad High Court held (videparas.10 and 11):-"The further argument is that any person,whether his interests are directly affected ornot, can file an application challenging any Actof the Legislature or the order of the Governmenton the ground that it is ultra vires. In thisconnection we cannot be better than quote thedecision of the learned Judges of the SupremeCourt of the United States in Commonwealth ofMassachusetts vs. Andrew W.Mellon, 262 U.S.447:67 Lawyers Edn. 1078, Sutherland, J. whodelivered the opinion of the Court quoted withapproval the remarks of Thomson, J. with whomStory, J. concurred, which were as follows:"It is only where the rights of persons orproperty are involved, and when such rights canbe presented under some judicial form ofproceedings, that Courts of justice can interposerelief."Dealing with the question whether a singletax-payer can challenge the enforcement of aFederal Appropriation Act on the ground that itwas invalid and would increase the burden of histaxes, the learned Judge observed: https://hcservices.ecourts.gov.in/hcservices/ "His interest in the moneys of the treasury-partly realised from taxation and partly fromother sources-is shared with millions of others;is comparatively minute and indeterminable; andthe effect upon future taxation of any paymentout of the funds so remote, fluctuating, anduncertain that no basis is afforded for an appealto the preventive powers of a Court ofequity....If one tax-payer may champion andlitigate such a cause, then every other tax-payermay do the same, not only in respect to thestatute hereunder review, but also in respect ofevery other appropriation Act and Statute whoseadministration requires the outlay of publicmoney, and whose validity may be questioned. Thebare suggestion of such a result, with itsattendant inconveniences, goes far to sustain theconclusion which we have reached, that a suit ofthis character cannot be maintained."Those remarks are with reference to a suit.They are much more applicable to proceedingsunder Art.226 which are of a summary and of acoercive nature without providing for a normaltrial or a right of appeal except in those caseswhere a substantial question of interpretation ofthe constitution arises. This Court is beingflooded with applications under Art.226 of theConstitution which is seriously affecting thenormal work of the Court. We feel that the timehas come when we may point out that Art.226 ofthe Constitution was not intended to provide analternative method of redress to the normalprocess of a decision in an action brought in theusual courts established by law. The powers underthis Article should be sparingly used and only inthose clear cases where the rights of a personhave been seriously infringed and he has no otheradequate and specific remedy available to him".7.No doubt, the law has developed since theabove decision was given by the Allahabad HighCourt in the year 1951, yet it must be reiteratedthat the development in the law relating to locusstandi in writ petitions only carved out someexceptions to the main rule which has been statedcorrectly by the Allahabad High Court, and it isnot that this main rule itself has been totallyabolished. Exceptions remain exceptions, and donot become the main rule. Hence, we must https://hcservices.ecourts.gov.in/hcservices/ reiterate that ordinarily a writ petition canonly be filed by a person who is personallyaggrieved.8.In Vinoy Kumar vs. State of U.P., A.I.R.2001 S.C. 1739 the Supreme Court observed (videpara.2):-"Generally speaking, a person shall have nolocus standi to file a writ petition if he is notpersonally affected by the impugned order or hisfundamental rights have neither been directly orsubstantially invaded nor is there any imminentdanger of such rights being invaded or hisacquired interests have been violated ignoringthe applicable rules. The relief under Art.226 ofthe Constitution is based on the existence of aright in favour of the person in invoking thejurisdiction. The exception to the general ruleis only in cases where the writ applied for is awrit of habeas corpus or quo warranto or filed inpublic interest. It is a matter of prudence, thatthe Court confined the exercise of writjurisdiction to cases where legal wrong or legalinjuries caused to a particular person or hisfundamental rights are violated, and not toentertain cases of individual wrong or injury atthe instance of third party where there is aneffective legal aid organization which can takecare of such cases. Even in cases filed in publicinterest, the Court can exercise the writjurisdiction at the instance of a third partyonly when it is shown that the legal wrong orlegal injury or illegal burden is threatened andsuch person or determined class of persons is, byreason or poverty, helplessness or disability orsocially or economically disadvantaged position,unable to approach the Court for relief."9.In State of Orissa vs. Ram Chandra Dev andanother, A.I.R. 1964 S.C. 685 the Supreme Courtobserved (vide para, 8):-"But though the jurisdiction of the HighCourt under Art.226 is wide in that sense, theconcluding words of the article clearly indicatethat before a writ or an appropriate order can beissued in favour of a party, it must beestablished that the party has a right and thesaid right is illegally invaded or threatened. https://hcservices.ecourts.gov.in/hcservices/ The existence of a right is thus the foundationof a petition under Art.226".10.Similarly, in Gadde Venkateswara Rao vs.Government of Andhra Pradesh, A.I.R. 1966 S.C.828 (vide para.8) the Supreme Court observed:-"The right that can be enforced underArt.226 also shall ordinarily be the personal orindividual right of the petitioner himself,though in the case of some of the writs likehabeas corpus or quo warranto this rule may haveto be relaxed or modified".11.In Sand Carrier's Owners' Union andothers vs. Board of Trustees for the Port ofCalcutta, A.I.R.1990 Cal. 176 it was observed bythe Calcutta High Court that "a Public InterestLitigation can be moved, where persons concernedfor whose benefit it is moved or socially andeducationally backward and Public InterestLitigation is also maintainable incases such asenvironmental etc.," However, it is also observed:-"The members of such association may beaffected by a common order and may have commongrievance, but for the purpose of enforcing therights of the members, writ petition at theinstance of such association is notmaintainable".Accordingly, the Calcutta High Courtdismissed the writ petition filed by the Owners'Union. 12.A similar view has been taken inGovernment Press Employees' Association BangaloreVs. Government of Mysore, A.I.R. 1962 Mys.25.13.In Dr.Duryodhan Sahu vs. Jitendra KumarMishra, (1998) 7 S.C.C.273, the Supreme Courtobserved that in service matters PILs should notbe entertained.14.Subsequently, in Ashok Kumar Pandey vs.State of West Bengal (2004) 3 S.C.C. 349, (videpara.16) the Supreme Court observed:- https://hcservices.ecourts.gov.in/hcservices/ "Though in Dr.Duryodhan Sahu vs. JitendraKumar Mishra, (1998) 7 S.C.C.273, this Court heldthat in service matters PILs should not beentertained, the inflow of so-called PILsinvolving service matters continues unabated inthe courts and strangely are entertained. Theleast the High Courts could do is to throw themout on the basis of the said decision".22.The said Hon'ble Division Bench has been followed by aSingle Judge of the Hon'ble High Court of Madras in the judgmentreported in (2008) 5 MLJ 1146 [NEYVELI LIGNITE CORPORATION, NILAMVEEDU KODUTHA KUZHAMPU PANIYALARGAL NALA SANGAM vs. NEYVELI LIGNITECORPORATION]. Therefore, this Court is of the opinion that the writpetitioner being an association cannot file the writ petition seekingto substitute itself on behalf of individual persons who have infactappeared and failed in the main written examination.23.In the judgment reported in (2009) 5 SCC 1 [ANDHRAPRADESH PUBLIC SERVICE COMMISSION vs. BALOJI BADHAVATH AND OTHERS]the Hon'ble Supreme Court has held that a person seeking anemployment has got only a right to be considered for an appointmentand the power of the respondents in evolving the policy cannot beinterfered with unless the same is arbitrary, discriminatory orwholly unfair. Therefore, unless the procedure adopted by the secondrespondent is held to be arbitrary or against known principles offair play, Courts shall not interfere with the same. Similarly, thejudgment reported in AIR 1984 SC 1543 [MAHARASHTRA STATE BOARD OFSECONDARY AND HIGHER SECONDARY EDUCATION AND ANOTHER vs. PARITOSHBHUPESH KURMARSHETH] the Hon'ble Supreme Court was pleased to held inparagraph 14 is as follows:"14.We shall first take up for considerationthe contention that cl.(3) of Regn. 104 is ultravires the regulation making powers of the Board.The point urged by the petitioners@ page-SC1550before the High Court was that the prohibitionagainst the inspection or disclosure of theanswer papers and other documents and thedeclaration made in the impugned clause that theyare ''treated by the Divisional Board asconfidential documents'' do not serve any of thepurposes of the Act and hence these provisionsare ultra vires. The High Court was of the viewthat the said contention of the petitioners hadto be examined against the back-drop of the factdisclosed by some of the records produced beforeit that in the past there had been a fewinstances where some students possessing inferior https://hcservices.ecourts.gov.in/hcservices/ merits had succeeded in passing of the answerpapers of other brilliant students as their ownby tampering with seat numbers or otherwise andthe verification process contemplated underRegn.104 had failed to detect the mischief. Inour opinion, this approach made by the High Courtwas not correct or proper because the questionwhether a particular piece of delegatedlegislation – whether a rule or regulation orother type of statutory instrument – is in excessof the power of subordinate legislation conferredon the delegate as to be determined withreference only to the specific provisionscontained in the relevant statute conferring thepower to make the rule regulation, etc. and alsothe object and purpose of the Act as can begathered from the various provisions of theenactment. It would be wholly wrong for the courtto substitute its own opinion for that of thelegislature or its delegate as to what principleor policy would best serve the objects andpurposes of the Act and to sit in judgment overthe wisdom and effectiveness or otherwise of thepolicy laid down by the regulation-making bodyand declare a regulation to be ultra vires merelyon the ground that, in the view of the Court, theimpugned provisions will not help to serve theobject and purpose of the Act. So long as thebody entrusted with the task of framing the rulesor regulations acts within the scope of theauthority conferred on it, in the sense that therules or regulations made by it have a rationalnexus with the object and purpose of the Statute,the court should not concern itself with thewisdom or efficaciousness of such rules orregulations. It is exclusively within theprovince of the legislature and its delegate todetermine, as a matter of policy how theprovisions of the Statute can best be implementedand what measures, substantive as well asprocedural would have to be incorporated in therules or regulations for the efficaciousachievement of the objects and purposes of theAct. It is not for the Court to examine themerits or demerits of such a policy because itsscrutiny has to be limited to the question as towhether the impugned regulations fall within thescope of the regulation-making power conferred onthe delegate by the Statute. Though this legalposition is well-established by a long series of https://hcservices.ecourts.gov.in/hcservices/ decisions of this Court, we have considered itnecessary to reiterate it in view of themanifestly erroneous approach made by the HighCourt to the consideration of the question as towhether the impugned cl. (3) of Regn.104 is ultravires. In the light of the aforesaid principles,we shall now proceed to consider the challengelevelled against the validity of the Regn. 104(3)." 24.In the present case, the petitioner has not evenchallenged the procedure adopted by the second respondent. Therefore,this Court is of the opinion that such a policy decision evolved bythe second respondent cannot be found fault with.25.As observed earlier the power of the Court exercisedunder Article 226 of the Constitution of India to have a judicialreview over a policy lies in a narrow compass. In the absence of anylegal right on the part of the petitioner to claim the relief, thewrit petition is liable to be dismissed. A similar view has beenexpressed by the Apex Court reported in (2007) 6 SCC 44 [RAM SINGHVIJAY PAL SINGH AND OTHERS VS. STATE OF U.P. AND OTHERS]. In the saidjudgment, the Hon'ble Supreme Court has observed as follows:"12.In Netai Bag vs. State of W.B. Thiscourt held as under in para 20 of the Reports:(SCC p.275)'' 20. The Government is entitled to makepragmatic adjustments and policy decision whichmay be necessary or called for under theprevalent peculiar circumstances. The courtcannot strike down a policy decision taken by theGovernment merely because it feels that anotherdecision would have been fairer or wiser or morescientific or logical. In State of M.P. vs.Nandlal Jaiswal it was held that the policydecision can be interfered with by the court onlyif such decision is shown to be patentlyarbitrary, discriminatory or mala fide. In thematter of different modes, under the rule ofgeneral application made under the M.P. ExciseAct, the Court found that the four differentmodes, namely, tender, auction, fixed licence feeor such other manner were alternative to oneanother and any one of them could be resortedto.''13. In the well-known case of BALCO Employees'Union (Regd.) vs. Union of India a three-Judge https://hcservices.ecourts.gov.in/hcservices/ Bench summarised the law on the point as under:(SCC p.335c-f)'' In a democracy, it is the prerogative ofeach elected Government to follow its own policy.Often a change in Government may result in theshift in focus or change in economic policies.Any such change may result in adversely affectingsome vested interests. Unless any illegality iscommitted in the execution of the policy or thesame is contrary to law or mala fide, a decisionbringing about change cannot per se be interferedwith by the court. It is neither within thedomain of the courts nor the scope of thejudicial review to embark upon an enquiry as towhether a particular public policy is wise orwhether better public policy can be evolved. Norare the courts inclined to strike down a policyat the behest of a petitioner merely because ithas been urged that a different policy would havebeen fairer or wiser or more scientific or morelogical. Wisdom and advisability of economic policiesare ordinarily not amenable to judicial reviewunless it can be demonstrated that the policy iscontrary to any statutory provision or theConstitution. In other words, it is not for thecourts to consider relative merits of differenteconomic policies and consider whether a wiser orbetter one can be evolved. In matters relating toeconomic issues, the Government has, while takinga decision, right to 'trial and error' as long asboth trial and error are bonafide and withinlimits of authority. For testing the correctnessof a policy, the appropriate forum is Parliamentand not the courts.''14. In Federation of Rly.Officers Assn. vs. Unionof India it was held as under in para 12 of theReports: (SCC p. 299)'' 12. In examining a question of thisnature where a policy is evolved by theGovernment judicial review thereof is limited.When policy according to which or the purpose forwhich discretion is to be exercised is clearlyexpressed in the statute, it cannot be said to bean unrestricted discretion. On matters affectingpolicy and requiring technical expertise the https://hcservices.ecourts.gov.in/hcservices/ court would leave the matter for decision ofthose who are qualified to address the issues.Unless the policy or action is inconsistent withthe Constitution and the laws or arbitrary orirrational or abuse of power, the court will notinterfere with such matters.'' 26.The petitioner cannot file a writ petition on the groundthat on earlier occasions a different procedure has been followed.The principle of legitimate expectation cannot be put against thepublic policy or any public interest unless the action amounts to anabuse of power. In the judgment reported in (2009) 1 SCC 180 [SETHIAUTO SERVICE STATION AND ANOTHER vs. DELHI DEVELOPMENT AUTHORITY ANDOTHERS] the Hon'ble Supreme Court has observed as follows:"33.It is well settled that the concept oflegitimate expectation has no role to play wherethe State action is as a public policy or in thepublic interest unless the action taken amountsto an abuse of power. The court must not usurpthe discretion of the public authority which isempowered to take the decisions under law and thecourt is expected to apply an objective standardwhich leaves to the deciding authority the fullrange of choice which the legislature is presumedto have intended. Even in a case where thedecision is left entirely to the discretion ofthe deciding authority without any such legalbounds and if the decision is taken fairly andobjectively, the court will not interfere on theground of procedural fairness to a person whoseinterest based on legitimate expectation might beaffected. Therefore, a legitimate expectation canat the most be one of the grounds which may giverise to judicial review but the granting ofrelief is very much limited." Therefore, on the ground of legitimate expectation also thepetitioner cannot seek the relief sought for.27.As discussed above, Article 14 of the Constitution ofIndia is positive in nature. The mere fact that the procedure hasbeen followed in some other case cannot be a ground for seeking therelief in the present writ petition. Even assuming that someirregularity or illegality has been committed by an authority therecannot be acquired right or claim on the basis of such anirregularity or illegality as the case may be. In the judgmentreported in (2008) 9 SCC 396 [KERALA STATE ELECTRICITY BOARD vs.SARATCHANDRAN P. AND ANOTHER] the Apex Court has observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "15. The learned counsel for the respondentState, on the other hand, supported the judgmentand order of the Division Bench of the HighCourt. He submitted that the Division Bench wasright in setting aside the judgment and orderpassed by the Single Judge as according to theBench, there was no reason to grant benefit tothe writ petitioners by appointing them as PSIsby relaxing Regulation 174. It was stated that sofar as Hamidullah Dar is concerned, he was havingpost graduate degree and his case was totallydifferent and that is how his name wasrecommended by the Director General of Police andaccordingly, he was appointed as PSI. OtherConstables did not possess such qualification andhence the Director General did not think itproper to recommend their cases for appointmentas PSIs and there was no illegality in takingsuch action. 16. It was admitted by the learned counselfor the respondent state that the writ petitionsfiled by the appellant-writ petitioners came tobe allowed and direction was issued to theauthorities to consider their cases. But it wasstated that the cases of the writ petitionerswere considered by the authorities and it was notfound fit to recommend their appointments as PSIsand accordingly the prayer was rejected. 17. It was also admitted that writ petitionof Abdul Rashid Rather was allowed and he wasgranted benefit but it was stated that it wasdone because of the issuance of writ by thelearned Single Judge which was confirmed by theDivision Bench as well as by this Court. Sincethe writ petition was allowed and the saiddecision was approved by the Division Bench asalso by this Court, the authorities had noalternative but to implement the said order. Thesaid fact, therefore, cannot be construed infavour of the appellants. When a similar orderwas passed by a Single Judge in favour of theappellants and directions were issued by theSingle Judge to give benefit similar to one whichhad been granted to Abdul Rashid Rather, theState Government approached the Division Benchand the Division Bench allowed the intra-courtappeal. In the circumstances, the action of the https://hcservices.ecourts.gov.in/hcservices/ state authority cannot be termed as illegal. Itwas, therefore, submitted that the appealsdeserve to be dismissed." 28.Considering the above said judgments, this Court is ofthe opinion that even assume the second respondent has committedwrong not followed the procedure earlier, the same cannot be a groundfor interference by granting the relief to the petitioner by invokingArticle 14 of the Constitution of India. Moreover, in a recentjudgment rendered by the Hon'ble High Court reported in (2009) 5 MLJ281 [DR.A.R.BALAMURUGAN vs. SECRETARY TO GOVERNMENT, HEALTH ANDFAMILY WELFARE DEPARTMENT] the Hon'ble High Court was pleased toobserve that in a case where the policy decision has been evolved andin pursuant to the said policy decision, the candidate hasparticipated in the selected process knowing fully about theprospectus then he cannot claim thereafter that the said clause inthe prospectus is arbitrary and violative of Article 14 of theConstitution of India. The Hon'ble High Court has observed asfollows: "9.5 The Division Bench of this Court inWrit Appeal Nos.89 to 91 of 2008, by an orderdated 5.2.2008 had held that a person acceptingthe Prospectus on the terms and conditions foundthereon and applied for the selection to thePost-Graduate Course at the time of submittingthe application would not be permitted to raisethe question that the terms and conditions in theProspectus are bad in law or non-selection.Paragraph Nos.4 and 5 of the said order isusefully extracted hereunder:"4.Admittedly, all the appellants hadapplied for selection by accepting the saidconditions. Even though the appellants were notselected for Post-Graduate Course at the time ofsubmitting applications and on the date ofselection, they were put on notice that on theirselection, they will not be permitted to undergoPost-Graduate course within a period of twoyears, excluding the leave. Having applied forselection by accepting the said conditions, it isnot open for the appellants now to seek forfurther extension to join the post on the groundthat they are pursuing their Post-GraduateDiploma. It is not permissible for the appellantsto attack the conditions of the advertisementafter participating in the selection process.(See Union of India and Another vs. https://hcservices.ecourts.gov.in/hcservices/ N.Chandrasekharan and Others, AIR 1996 SC 795),I.L.Honnegounda vs. State of Karnataka andOthers, AIR 1978 SC 28 and Om Prakash Shukla vs.Akhilesh Kumar Shukla (1986) (Supp) SCC 285).5.Moreover, there is no power in theAuthorities to grant relaxation of the conditionto join duty. The binding nature of theinstructions to the candidate is well settled.The Supreme Court in Punjab Engineering College,Chandigarh vs. Sanjay Gulati. AIR 1983 SC 560 hasclearly laid down that the Prospectus is bindingon all persons concerned and following the same,a Division Bench of this Court has also observedin Rathnaswamy, Dr.A. vs. Director of MedicalEducation, (1986) ELR 207 that the rules andnorms of the Prospectus are to be strictly andsolemnly adhered to. The same principle isreiterated in the case of Dr.M.AshiqNihamathullah vs. Government of Tamil Nadu andOthers, (2005) WLR 697. It is not permissible forthe Court to make any modification and/orrelaxation in the conditions stipulated by theProspectus. Further, granting of any relief inthis petition would mean that the post inquestion will have to be kept vacant for anothersix months or one year causing serious prejudiceto the general public."Thus, the decision cited above wouldindicate that the petitioners who haveparticipated in the selection process for thepost-graduate courses fully knowing about thefact that 16 courses have been ear marked to inservice candidates alone, cannot be heard to saylater on non-selection, that ear-marking the 16courses only for in service candidates alone isbad in law.10.Secondly, the policy decision has beentaken by the Government to ear-mark 16 Coursesfor the in-service candidates on the ground thatthe Government wishes to ensure that there is noscarcity of the Doctors and the services of theDoctors after completion of Post-Graduate Coursesbe utilized to serve the poor and needy of thecountry at large in particular. Considering thefact that there are number of vacancies in theGovernment Medical Colleges and the Hospital inthe scarce specialities, in order to fill up https://hcservices.ecourts.gov.in/hcservices/ these vacancies with Medical Officer qualified inthese specialities, the Government have taken adecision to refer this Post-Graduate coursesexclusively for the service candidates. When sucha policy decision had been taken by theGovernment, it is not for this Court to direct oradvise the Executives in matters of Policies.10.1.Such a view had been taken by theHonourable Apex Court and the same is in EktaShakti Foundation vs. Government of NCT of Delhi(2007) 7 MLJ 730. Paragraph Nos.10 to 12 of thesaid judgment are usefully extracted hereunder atp.734 of MLJ:"While exercising the power of judicialreview of administrative action, the Court is notthe appellate authority and the Constitution doesnot permit the Court to direct or advise theexecutive in matter of policy or to sermonize anymatter which under the Constitution lies withinthe sphere of the Legislature or the executive,provided these authorities do not transgresstheir constitutional limits or statutory power.See Ashif Hamid vs. State of J&K AIR 1989 SC1899, Shri Sitaram Sugar Co. vs. Union of India,AIR 1990 SC 1277. The scope of judicial enquiryis confined to the question whether the decisiontaken by the Government is against any statutoryprovisions or is violative of the fundamentalrights of the citizens or is opposed to theprovisions of the Constitution. Thus, theposition is that even if the decision taken bythe Government does not appear to be agreeable tothe Court it cannot be interfere.The correctness of the reasons whichprompted the Government in decision making,taking one course of action instead of another isnot a matter of concern in judicial review andthe Court is not the appropriate forum for suchinvestigation.The policy decision must be left to theGovernment as it alone can decide which policyshould be adopted after considering all thepoints from different angles. In matter of policydecisions or exercise of discretion by theGovernment, so long as the infringement offundamental right is not shown, Courts will have https://hcservices.ecourts.gov.in/hcservices/ no occasion to interfere and the Court will notand should not substitute its own judgment forthe judgment of the executive in such matters. Inassessing the propriety of a decision of theGovernment, the Court cannot interfere even if asecond view is possible from that of theGovernment.10.2.In yet another decision inS.Karthikeyan vs. Teachers' Recruitment Board,E.V.K.Sampath Maligai, 4th Floor, D.P.I.Compound, College Road, Chennai – 600 006 (2007)5 MLJ 361 : (2007) 3 CTC 814, the learned singleJudge of this Court has held that"The policy decision of Government inselection for posts cannot be interfered with ina writ jurisdiction, except if it is violative ofthe provisions of the Constitution of India orcontrary to public policy or laws in force or, ifit is violative principle of natural justice.Further, it has been held in the said order thatthe petitioner thereof having participated in theprocess of selection, it may not be open to himto challenge the same later.The said judgment squarely applicable to thefacts of the present case."29.Therefore, on a consideration of the entire facts andlaw as well as the arguments made by the learned counsels appearingfor both sides, this Court is of the considered opinion that the writpetition deserves to be dismissed. Accordingly, the same isdismissed. No costs. Consequently, connected miscellaneous petitionsare closed.SriSd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary Government of Tamil Nadu Home (Transport IIA) Department Fort St. George Chennai – 600 009.2.The Secretary Tamil Nadu Public Service Commission Government Estate Chennai – 600 002.+ 1 cc to M/s. Surendranath Advocate SR No.43986+ 1 cc to Mr.K. Rajkumar, Advocate SR No.43875AKR(CO)SR/7.9.2009W.P.NO.13216 OF 2009